BREAKING| Supreme Court Sets Aside HC Order Transferring Himachal Pradesh DGP, Criticizes High Court's Approach

The Supreme Court on Friday (January 12) set aside the order of the Himachal Pradesh High Court transferring Sanjay Kundu IPS from the post of DGP of the State on the allegation that he was interfering with the fair investigation of a case.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra expressed reservations about the manner in which the High Court passed the initial order ex-parte and then refused to recall the first order when the petitioner approached it.

Setting aside the initial order of transfer and the subsequent refusal of the High Court to recall the first order, the Supreme Court said that the proper course of action was to hear the matter afresh, by recalling the first ex-parte order, instead of affording a "post-decisional" hearing.

"The correct course of action would have been for the High Court to recall its ex parte order and hear the matter afresh.... Instead, the HC in the impugned order has substantially gone by the earlier status reports. The High Court's order suffers from a parent error of jurisdiction since an order of serious consequences was passed emanating from its directions that were not compliant with principles of natural justice...a post decisional hearing is liable to cause disquiet as there has been no fresh application of mind to hear party not heard at first instance", CJI DY Chandrachud dictated in the order.

"The consequences of shifting out an IPS officer as DGP are serious. Such an order for transfer could not have been passed without an opportunity for the petitioner to contest the proceedings against him and let him file his response," the bench observed in the order.

The High Court passed the order on December 26, 2023, in a suo motu proceeding initiated on a letter petition sent by a businessman apprehending a threat to his life by a former IPS officer and a practising lawyer. The complainant alleged that the petitioner was interfering with the investigation. The High Court ordered the transfer of the DGP and Kangra SP, observing that it was necessary to ensure fair investigation of the complainant's case. Finding that the High Court passed the order without hearing the officer, the Supreme Court, on January 3, stayed the order and granted liberty to Kundu to approach the High Court seeking recall of the earlier order. On January 9, the High Court dismissed the recall application and directed the constitution of a SIT to investigate the businessman's complaint 

Even while setting aside the High Court's direction for the transfer of the DGP, the Supreme Court did not interfere with the HC directions to transfer the investigation to SIT. The Supreme Court however clarified that the petitioner shall not influence the working of the SIT. 

"The petitioner shall exercise no control over the SIT constituted in pursuance of HC directions," the Supreme Court ordered.  The Court added that the State should form an SIT with IG-level officers who should not contact the petitioner and should ensure the protection of the complainant.

Senior Advocate Mukul Rohatgi, challenging the second order of the High Court, argued before the Supreme Court bench that the petitioner, an IPS officer, has "virtually been made an IAS officer", as the State Government posted him as the Secretary of the AYUSH Department. He contended that the High Court has no power to transfer an All India Service officer in that manner.

The Supreme Court did not get into the merits of the allegations and left the matter to the SIT investigation.

 Case : Sanjay Kundu v. Registrar General, High Court of Himachal Pradesh | SLP(Crl) No. 550-551/2024